Ask a Lawyer
Ask a Question

Posted Jan 19th, 2012
Can a single person file a DMCA on non-commercial digital work that is used in a collaborate
project, or is it protected under Fair Use?

Additional Details:
We are a group of people working on a non-commercial non-profit project. One of our (now previous)
members had contributed to this project, but has after leaving the project filed a DMCA. 1) Does he
have copyright to his material just from the fact that he made it? 2) Can he file a DMCA despite
initially agreeing to have his work included? 3) Does the use of his material count as Fair Use,
because the project mixes his material with several other free domain materials? Thanks!
Legal Topic Area: Intellectual Property in NY | 2 Answers

1st Answer

Anyone can file a DMCA notice. The recipient of the notice can decide in its sole discretion whether to abide by the notice. In general, only compliance with the takedown demand provides the recipient of the notice with the "safe harbor" provided by the DMCA. In general, the recipient of the notice does not get involved in trying to decide copyright-law issues such as fair use.


Answered on Jan 19th, 2012 at 12:02pm


Other Answers

When a collaborative work is prepared, the copyright in the collaborative work does not extend to the copyrights in the individual works that make up the overall work. It is possible that the copying, public display, etc. of a collaborative work infringes the copyright of one or more of the copyrights of the individual works in the collaborative work. The answer to your question will probably depend on the agreement that the project has with the owner of the copyright in the individual work. If the agreement gives a license to the individual work in the collaborative work, then the DMCA claim shouldn't stand because the project has authorization to the individual work. This license could be written, or it could be oral. There may be a fair use here, there really aren't enough facts to tell. Fair use depends on a lot of factors, the non-commercial aspect being only one of them. You should consult an attorney knowledgeable of copyright law to answer your questions.


Answered on Jan 20th, 2012 at 9:11pm